Does the Financial Elder Abuse Statute Require Knowledge of Plaintiff's Age?
Plaintiffs in civil actions in California age of 65 or older are an "Elder" as defined in the Elder Abuse and Dependent Adult Civil Protection Act set forth at California Welfare & Institutional Code, sections 15600, et seq. ("Elder Abuse Act"), and Section 15610.27 thereof.
Financial elder abuse is the taking of “real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud” or by undue influence.
It is relatively simple to prove “wrongful use.” A plaintiff need only show that the defendant “knew or should have known that the challenged conduct is likely to be harmful to the elder or dependent adult.”
However, there is no statutory requirement that a defendant knew or should have known that a plaintiff was 65 years of age or older and an "elder" within the meaning of the Elder Abuse Act at the time(s) of wrongful conduct.
The defendant’s subjective state of mind is not a required element of an elder abuse claim.
In 2008, the Legislature amended the Elder Abuse Act to remove the requirement that plaintiffs prove “bad faith.” It replaced that test with one that turns on “the defendant’s knowledge or presumed knowledge of the effect of the taking on the elder or dependent adult, to which a reasonable standard may be applied.”
This test focuses on the defendant's actual or presumed knowledge of the effect of the taking of the property from the plaintiff, with no requirement that defendants have knowledge of the Elder Abuse Act or its statutory definition of an elder.
There is no statutory requirement that defendants knew or should have known the age of an elder plaintiff or that the plaintiff was an "elder" under the Elder Abuse Act.
To impose the requirement of defendants' knowledge of plaintiff's age or status as an "elder" under the Elder Abuse Act would create a significant limitation on the application of the Act, and provide a convenient defense to defendants who may claim, based on their subjective knowledge, they had no knowledge of the plaintiff's age.
There is no case authority supporting the requirement that a defendant know or reasonably should know that a plaintiff is an "elder" by being 65 years of age or older, or that such a plaintiff is even protected by the Elder Abuse Act.
Finding a party liable for financial elder abuse does not require an inquiry into the party’s subjective intent. Plaintiff need only prove that under an objective standard, a reasonable person would know that the defendants' conduct was likely to harm plaintiff.
In the decision in Mahan, the appellate court recognized that "in construing the Elder Abuse Act, we begin with its words. We are guided by the ordinary meaning of those words, their relationship to the text of related provisions, terms used elsewhere in the statute, and the overarching structure of the statutory scheme. When the language of a statutory provision remains opaque after considers its text, the statute's structure, and related statutory provisions, we may take account of extrinsic sources - such as legislative history - to assist us in discerning the Legislatures purpose.”
The Mahan decision does not create a requirement that before the Elder Abuse Act applies or can be violated, the defendant must know or should know the plaintiff is an "elder" by being the age of 65 or older, and instead relies upon the ordinary meaning of the words in the statute.
As explained in Mahan, “civil actions may be brought under the Act for . . . ‘ “[f]inancial abuse”. To strengthen what had previously been a scheme relying on reporting by mandated reporters and public enforcement by prosecutorial authorities, in 1991 the Legislature created a remedial scheme specifically for these private actions.
A claim for financial elder abuse can be asserted not only against a person or entity who wrongfully deprived an elder of any property right, but also one who assisted another in doing so.
In the case of Wood v. Jamison, defendant committed financial elder abuse both directly, by taking a fee paid through loan proceeds, and by assisting another in taking loan proceeds.
Where there is room for debate regarding the meaning of the statutory text of the Act, it should be liberally construed on behalf of the class of persons it is designed to protect, and in a manner compatible with its overall remedial purpose.
Defendants violate the Elder Abuse Act by taking financial advantage of a plaintiff, and by committing financial abuse of the plaintiff as defined in Section 15610.30 by:
a. Taking, secreting, appropriating, obtaining, or retaining the property for a wrongful use or with intent to defraud plaintiff, or both, and by intentionally not paying the sums due under the a promissory note;
b. Assisting in taking, secreting, appropriating, obtaining, or retaining the property for a wrongful use or with intent to defraud plaintiff, or both, by intentionally not paying the sums due under a promissory note; and/or
c. Taking, secreting, appropriating, obtaining, or retaining, or assisting in taking, secreting, appropriating, obtaining, or retaining, the property by undue influence, as defined in Section 15610.70, by intentional material misrepresentations that plaintiff would be paid the payments required by a promissory note.
The Judicial Council of California Civil Jury Instructions (2025 edition), CACI 3100, only requires the essential factual elements of proof that all of the following are more likely to be true than not true:
a. That defendant took, hid, appropriated, obtained, or retained plaintiff’s property, or assisted in taking, hiding, appropriating, obtaining or retaining plaintiff’s property;
b. That plaintiff was 65 years of age or older at the time of the conduct;
c. That defendant took, hid, appropriated, obtained or retained, or assisted in taking, hiding, appropriating, obtaining or retaining the property for a wrongful use or with the intent to defraud by undue influence;
d. That plaintiff was harmed; and
e. That defendant's conduct was a substantial factor in causing plaintiff's harm.
It would be incongruent to CACI 3100 for the Court to impose an additional element of proof in the bench trial that the defendant knows the age of plaintiff is 65 years or older, and status as an "elder" at the time of the conduct when such an element is not required by CACI 3100 in a jury trial.
The Judicial Council of California Civil Jury Instructions (2025 edition), Special Verdict VF-3100, based on Welf. & Inst. Code §§ 15610.30 and 15657.5(b), only requires the jury to affirmatively answer the following questions to find liability for violation of the Elder Abuse Act:
a. Was plaintiff 65 years of age or older at the time of the conduct?
b. Did defendant take, hide, appropriate, obtain or retain plaintiff's property for a wrongful use or by undue influence?
c. Was defendant's conduct a substantial factor in causing harm to plaintiff?
d. What are plaintiff's damages?
None of the questions for the jury in the special verdict require the jury to make a finding of fact that a defendant knew the age of the plaintiff at the time of the fraudulent and wrongful conduct.
It would also be incongruent to impose an additional finding of fact in the trial of proof that the defendants knew the age of plaintiff and status as an "elder" at the time of their conduct when such a finding is not required by special verdict CACI VF-3100.
Penal Code § 368 limits a violation to "[a] person who knows or reasonably should know that a person is an elder or dependent adult” and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, and is punishable by imprisonment in a county jail not exceeding one year or a fine, or both a fine and imprisonment, or imprisonment in the state prison for two, three or four years.
Therefore, as evidenced by Section 368, the legislature could have included the "knows or reasonably should know that a person is an elder" as a necessary element in a violation of the Elder Abuse Act in a civil case, but it has not required such an element in a cause of action for financial elder abuse.
LESSONS:
1. A cause of action for financial elder abuse is a very powerful claim in a civil case where the plaintiff is age 65 or order and was defrauded, and it should always be considered in filing a lawsuit.
2. Financial elder abuse is the taking of “real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud” or by undue influence.
3. It is relatively simple to prove “wrongful use.” A plaintiff need only show that the defendant “knew or should have known that the challenged conduct is likely to be harmful to the elder or dependent adult.”
4. Finding a party liable for financial elder abuse does not require an inquiry into the party’s subjective intent. Plaintiff need only prove that under an objective standard, a reasonable person would know that the defendants' conduct was likely to harm plaintiff.